The 2026 midterm elections put an expiration date on Trump’s judicial confirmation machine: Democrats won back the Senate, but Republicans still control it until January. For Trump, that leaves one last window: the lame duck, which is the period after the election but before the new Congress convenes in January. Senate Republicans stand ready to break all the rules to get it done, which means that for Senate Democrats, the fight over who gets a lifetime appointment starts now, not when they take the majority.
Vacancies
Back in September, five judges announced plans to retire outright or assume senior status, a form of semi-retirement giving Trump an opportunity to appoint their replacements: Leslie Southwick of the U.S. Court of Appeals for the Fifth Circuit, Robert Rossiter, Jr., of the District of Nebraska, Timothy Cain of the District of South Carolina, Philip Simon of the Northern District of Indiana, and John Tharp of the Northern District of Illinois. Southwick and Simon were appointed by President George W. Bush in 2007 and 2003, respectively. Rossiter, Cain, and Tharp were appointed by President Barack Obama in 2016, 2011, and 2012, respectively.
Tharp and Cain have already assumed senior status. Southwick will assume senior status on the earlier of December 31 or the confirmation of his successor; Rossiter will assume senior status when his successor is confirmed; and Simon will retire from the bench on July 8, 2027.
Southwick was one of President George W. Bush’s more controversial nominees because of two opinions he joined while serving on the Mississippi Court of Appeals. In one, Southwick joined a majority opinion that reinstated a fired white person who had called their Black colleague a “good ol’”—well, you know. In the other, Southwick joined a concurrence in a child custody case that suggested that a parent’s choice of a homosexual “lifestyle” could carry consequences, including in custody decisions.
On the Fifth Circuit, though, Southwick passes as a moderate. For example, in July 2026, he wrote an opinion upholding a firearms ban against a man convicted of domestic violence. He’s also been a thorn in Trump’s side: That same month, Southwick concluded that Trump’s policy subjecting immigrants to mandatory detention while their deportation proceedings are pending violated the Constitution’s due process clause. And in September 2025, he wrote an opinion holding that Trump unlawfully invoked the Alien Enemies Act in an effort to deport Venezuelans that Trump claimed were part of a criminal gang.
Nominees
Given his history, Southwick’s decision to let Trump replace him was surprising. But not as surprising as the speed with which Trump nominated a replacement. Southwick informed the White House—publicly, anyway—on September 28 that he was stepping back. Just three days later, on October 1, Trump announced that he had picked Mississippi lawyer (and former Southwick clerk) G. Todd Butler as the replacement.
That kind of turnaround is unprecedented. You cannot vet a candidate for a life-tenured appeals court seat in a matter of days. But, of course, it wasn’t really just a matter of days. Butler’s Senate Judiciary Committee questionnaire puts the start of the process back in June, when Mississippi Republican Senator Roger Wicker reached out to Butler about his interest in a “potential” vacancy on the Fifth Circuit. Butler then interviewed with the White House in July. The questionnaire doesn’t tell us whether Southwick and the White House struck a deal, but it does tell us that the White House was interviewing his eventual successor months before anyone publicly knew there was a seat to fill.
The reaction in conservative circles was, well, mixed. On one end of the spectrum, Mike Fragoso, former chief counsel to Kentucky Senator Mitch McConnell, called Butler the “smart play” shortly after his nomination, given that Republicans appeared likely to lose the Senate. On the other end, perpetually aggrieved conservative law professor Josh Blackman wrote seven (!) posts in five days raging about Butler, including three posts on October 2 alone. In Blackman’s view, Butler is problematic because (1) he’s not Edith Jones; (2) Blackman has never heard of him before; and (3) Butler apparently didn’t attend a Mississippi Federalist Society event at which Blackman spoke. I’m sure the Judiciary Committee will get to the bottom of that last one.
Trump also nominated Philip Aubart to the Middle District of North Carolina and Brian Meyers to the Eastern District of North Carolina. Aubart was a Blackstone Fellow at Alliance Defending Freedom, an anti-LGBTQ organization designated as a hate group by the Southern Poverty Law Center. He currently serves as a federal prosecutor. Meyers worked as a legislative assistant for famously racist Senator Jesse Helms, and has been a federal magistrate judge since 2020.
On October 19, Trump nominated Joseph Falvey to the Northern District of Indiana and Eric Hamilton to the District of Nebraska. Falvey, a 2017 law school graduate, is a former law clerk to Chief Justice John Roberts and a current federal prosecutor. Hamilton, a current member of Trump’s Justice Department, previously served as Nebraska’s Solicitor General. At DOJ, he defended Trump’s disastrous tariffs policy and unlawful attempt to end birthright citizenship via executive fiat.
On October 24, Trump nominated William Grayson Lambert to the District of South Carolina. Lambert is chief legal counsel to South Carolina Governor Henry McMaster, a capacity in which he defended the state’s six-week abortion ban (among many other terrible laws).
Finally, in a move reeking of sweaty desperation, on November 5, Trump nominated James Sullivan to the Western District of Texas. Sullivan is one of four Republican Texas Supreme Court justices who lost their re-election campaigns just days before. Sullivan, it appears, saw the writing on the wall before election day, as his Senate questionnaire states that he began interviewing for the position in September. It’s almost too on the nose for Trump to pick a guy Texas voters just rejected and try to promote him to a life-tenured job instead. Democracy!
(Photo by Win McNamee/Getty Images)
What’s Next
The Senate’s lame-duck period begins with a long to-do list and very little time in which to do it. Under the current schedule, the Senate is in session November 9 and 10, and then again the week of November 16, and then the three weeks from November 30 through December 18—just 30 days in total. (That number includes Fridays, which Senators are famously loath to work on.)
In that limited time, Senate Majority Leader John Thune has the uphill task of trying to confirm the 23 judicial nominees pending in the Senate. Only three—Daniel Domenico (Tenth Circuit), Anna St. John (Fifth Circuit), and Greg Cook (Northern District of Alabama)—are currently on the Senate floor and eligible to begin the confirmation process. Six more—Daniel Ballou (Eastern District of Kentucky), Richard Bennett (Southern District of Texas), Courtney Coker (Northern District of Texas), Trevor Pemberton (Northern District of Oklahoma), Kyle Reardon (District of Alaska), and Zach West (Eastern District of Oklahoma)—will have their committee votes on November 10 and will join Domenico, St. John, and Cook on the Senate floor on November 16.
The rest of the nominees, though, have further to go. Four of them—Lee Rudofsky (Eighth Circuit), Robert Long (Middle District of Florida), Peter Mansfield (Eastern District of Louisiana), and Jesus Osete (Western District of Missouri)—have had their hearing but won’t get their committee votes until November 19, and won’t get to the Senate floor until November 30. And ten more—Todd Butler (Fifth Circuit), Samuel Adkisson (Eastern District of Tennessee), Philip Axt (District of North Dakota), Bradford Kelly (Eastern District of Louisiana), Philip Aubart (Middle District of North Carolina), Brian Meyers (Eastern District of North Carolina), Joseph Falvey (Northern District of Indiana), Eric Hamilton (District of Nebraska), William Grayson Lambert (District of South Carolina), and James Sullivan (Western District of Texas)—still need hearings.
Although the time remaining is limited, there is enough—in theory, anyway—for all the pending nominees to get confirmed on the Senate floor, and that’s partly because Judiciary Committee Chair Chuck Grassley is breaking more norms to speed things up. Usually, the committee holds hearings every other week and only after a nominee has been pending for 28 days, in order to give members time to do their due diligence. But Grassley has announced that the committee will hold hearings in back-to-back weeks on November 10 and November 18, which will have the effect of getting more nominees to the floor a week earlier. Those who appear on November 10 should make it to the Senate floor by December 7, and those who appear on November 18 should do the same by December 14—the last full week the Senate is expected to be in session.
This is not the only norm Grassley is breaking, either. Sullivan—the Texas district court nominee who just lost his Texas Supreme Court election—will appear at the hearing on November 18, only two weeks after the Senate received his nomination paperwork. Had Grassley followed convention, the Senate would have had to extend its session later into December to accommodate some nominees, and Sullivan’s nomination would have run out of time.
Assuming full attendance from Republicans, then, Democrats cannot prevent Republicans from confirming judges. But, they can make the process excruciating. In the lame-duck period after the 2024 elections, for example, Republicans used procedural maneuvers to force votes on every step of the confirmation process, turning an exercise that usually takes minutes into a series of roll call votes lasting late into the night. Democrats quickly caved, cutting a deal that handed Trump three appeals court vacancies.
It’s not so clear that Republicans, who need a partisan judiciary to enforce their deeply unpopular agenda, would give in so easily. But there are a lot of variables. For one, full attendance from Republicans is not guaranteed. Several Republican Senators are retiring. Tennessee’s Marsha Blackburn and Alabama’s Tommy Tuberville just won their states’ governorships. Oklahoma’s Alan Armstrong is a caretaker who didn’t run for re-election. Darline Graham has been a senator for roughly five minutes and just suffered a humiliating defeat on the national stage. Are any of them all that interested in ruining their holiday plans to do their toxic master’s bidding for a few more weeks?
Senate Democrats won big last week. They can act like it by denying unanimous consent, demanding roll calls, and making Republicans spend the maximum amount of floor time to confirm every judge they can. The voters took away Trump’s Senate majority; Democrats can’t spend the lame duck helping him make the most of it.
